Citation Nr: 1028704
Decision Date: 07/30/10 Archive Date: 08/10/10
DOCKET NO. 05-37 353 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for melanoma.
2. Entitlement to service connection for metastatic cancer of
the lymph node.
3. Entitlement to service connection for bilateral knee
disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. N. Moats, Counsel
INTRODUCTION
The Veteran had over 21 years of active duty service ending with
his retirement in January 1985.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2004 rating decision by a Regional Office
(RO) of the Department of Veterans Affairs (VA). A Board hearing
at the local RO was held in July 2008. The Board remanded these
issues for further development in November 2008.
The issue of service connection for right foot disability was
also remanded by the Board in November 2008. However, a
subsequent rating decision in March 2010 granted service
connection for right foot disability, described as residuals chip
fracture right great toe, post-operative exostectomies. Thus, as
this was a full grant of the benefit sought on appeal, this issue
is no longer in appellate status.
The Veteran submitted additional evidence to the Board in June
2010. Although the Veteran's representative waived RO
consideration of this evidence in a June 2010 Informal Hearing
Presentation, the RO will have the opportunity to review this
evidence on remand.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
Pursuant to the prior remand, the Veteran was afforded VA
examinations in May 2009 and February 2010 with the same
physician's assistant. The examiner indicated that malignant
melanoma with metastatic cancer of the lymph node was not known
to be associated to Agent Orange exposure. Subsequent to the
opinion, the Veteran submitted medical publications indicating a
link between melanoma and Agent Orange. Although the Board
regrets further delay, in order to fully assist the Veteran a
clarifying opinion is appropriate. Moreover, due to the medical
complexity of the underlying question, an opinion should be
sought from an oncologist, if available.
With respect to the Veteran's bilateral knee disability, the
examiner gave an opinion that the Veteran's disability was not
permanently aggravated by his military service. However, the
Veteran did not have a pre-existing knee disability documented on
entrance and, thus, the examiner was directed to offer an opinion
as to whether the Veteran's bilateral knee disability was
incurred during service as opposed to aggravation. Moreover, the
examiner indicated that the service treatment records showed no
complaint or treatment regarding the knees. However, as observed
in the Board's prior remand, a February 1984 service medical
history showed occasional arthralgia in knees with change in
weather. It also does not appear that the examiner considered
the Veteran's lay statements that his knee pain began shortly
after service which he attributed to the boots he was required to
wear. Further, in the interim, the Veteran was also awarded
service connection for a right foot disability. Thus, it would
seem appropriate to determine whether his bilateral knee
disability is secondary to his now service-connected right foot
disability.
The Board's prior November 2008 remand directed the RO to send
additional notice to the Veteran informing him of the information
and evidence necessary to establish entitlement to service
connection under a secondary theory entitlement pursuant to the
Veterans Claims Assistance Act of 2000 (VCAA), codified at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107. However, it does not
appear that such notice was sent. Thus, in order to comply with
the Board's November 2008 remand, the RO must take additional
action to send sufficient VCAA notice the Veteran. See Stegall
v. West, 11 Vet.App. 268 (1998).
Accordingly, the case is REMANDED for the following actions:
1. The RO should furnish the Veteran with
an appropriate VCAA letter under
38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b). The letter should specifically
include notice to the Veteran of the
evidence necessary to substantiate the
issues on appeal under a secondary service
connection theory of entitlement.
2. The Veteran should be scheduled for an
appropriate VA examination with an
oncologist, if possible (if an oncologist
is not available, then with a medical
doctor with sufficient expertise with
melanoma) with regard to his melanoma and
metastatic cancer of the lymph node. It is
imperative that the claims files be made
available to the examiner for review in
connection with the examination. After
reviewing the claims files and examining
the Veteran, the examiner should respond to
the following:
a) Is it at least as likely as not (a
50% or higher degree of probability) that
melanoma and metastatic cancer of the lymph
node manifested during or are otherwise
directly related to the Veteran's service,
to include exposure to herbicides?
b) Is it at least as likely as not (a
50% or higher degree of probability) that
melanoma and metastatic cancer of the lymph
node are proximately due to, or caused by,
the Veteran's service-connected actinic
keratoses?
c) Is it at least as likely as not (a
50% or higher degree of probability) that
melanoma and metastatic cancer of the lymph
node have been aggravated by the Veteran's
service-connected actinic keratoses?
A detailed rational for all opinions
expressed should be given, to include a
discussion of any relation to the Veteran's
exposure to herbicides as well as how the
manifestation of actinic keratoses, which
is caused by UV radiation or sun exposure,
could differ from the cause of melanoma,
which is also known to be caused by UV
radiation or sun exposure. The examiner
should also address the literature
submitted by the Veteran and any other
relevant medical studies or literature.
3. The Veteran should be scheduled for an
appropriate VA examination by a medical
doctor with regard to his bilateral knee
disability. It is imperative that the
claims files be made available to the
examiner for review in connection with the
examination. After reviewing the claims
files and examining the Veteran, the
examiner should clearly delineate all
bilateral knee disabilities. Further, the
examiner should respond to the following:
a) Is it at least as likely as not (a
50% or higher degree of probability) that
any bilateral knee disability is directly
related to the Veteran's service, to
include his lay statements of wearing
boots?
b) Is it at least as likely as not (a
50% or higher degree of probability) that
any bilateral knee disability is
proximately due to, or caused by, the
Veteran's service-connected low back
disability and/or right foot disability?
c) Is it at least as likely as not (a
50% or higher degree of probability) that
any bilateral knee disability has been
aggravated by the Veteran's service-
connected low back disability and/or right
foot disability?
A detailed rational for all opinions
expressed should be provided.
4. In the interest of avoiding future
remand, the RO should then review the
examination reports to ensure that the
above questions have been clearly answered
and a rationale furnished for all opinions.
If not, appropriate action should be taken
to remedy any such deficiencies in the
examination reports.
5. Thereafter, the issues on appeal should
be readjudicated. If the benefits sought
on appeal are not granted, the Veteran and
his representative should be provided with
a supplemental statement of the case and
afforded the appropriate opportunity to
respond thereto. Thereafter, the case
should be returned to the Board for further
appellate consideration, if otherwise in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United
States Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.
2009).
_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).